MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session January 18, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:45 a.m., on Wednesday, January 18, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus COMMITTEE MEMBERS ABSENT: None (Senator O.C. Lee not yet sworn in) STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: The Honorable Robey Willis, Nevada Judges Association James J. Jackson, Nevada State Public Defender Laurel Stadler, Legislative Liaison, Mothers Against Drunk Drivers (MADD) Judy Jacoboni, President, Mothers Against Drunk Drivers (MADD) Eric Cooper, Nevada Sheriffs and Chiefs Association Senator James announced that newly appointed Senator O.C. Lee will be joining the committee, and had been invited to participate in the hearing, although he had not yet been sworn in. The chairman indicated both pieces of legislation scheduled for hearing were drafted as a result of the interim study committee on Criminal Justice System in Nevada. SENATE BILL 37: Makes various changes to provisions governing admission of defendants to bail. SENATE BILL 38: Provides in skeleton form schedule of uniform bail for application throughout state. Senator James invited Senator Ernest E. Adler, member of the interim study committee, to explain both pieces of legislation, beginning with Senate Bill (S.B.) 37. Senator Adler stated the purpose of the bill was to "introduce the concept of a prerelease officer...", so inmates could be better screened for purposes of bail throughout the state. He said in certain instances there are persons who do not have great financial means and are not a threat to the community, but have difficulty "bailing out." Senator Adler indicated passage of this measure would "provide a mechanism whereby they could bail out just as people who have greater financial resources." He added S.B. 37 would not be mandatory upon the counties, since the wording included "may," not "shall." Senator Adler said the bill provided for certain conditions under which a magistrate could appoint an officer to assist the court as a "prerelease officer," who in turn could make certain decisions regarding bail. He said one of those decisions could be reduction of bail below the bail schedules. The senator indicated there would be administrative assessments on all offenders to pay for the prerelease program, and a special fund would be established for this purpose. Senator Adler said the purpose of the program would be to "have a more thorough review of everyone who enters the jail, establish an appropriate bail schedule for each individual and allow for their release." Senator Adler referred to section 4 of S.B. 37, stating this section set forth specific conditions the court may impose upon release, many of which already exist in the law. He said Section 5 of the bill was "controversial," since it provides if anyone cannot afford to post bail through a bail bondsman, the court may allow a bond of $25.00 or ten percent of the amount of the bail, "whichever is greater." Senator Adler said this provision could be utilized if someone did not have adequate security to obtain a bond from a bail bondsman and was not a threat to the community. He reiterated the provision was not mandatory, and indicated some counties may not wish to implement the legislation, because of the additional law enforcement personnel required to "retrieve a person who did not show up for court." Senator James asked how the remainder of bail would be recovered by a county, if no security were obtained, and the accused did not appear in court. Senator Adler answered the county would have to obtain a civil judgment for the full amount and execute upon the same. Senator James referred to a publication provided by the American Legislative Exchange Council (ALEC), entitled The State Factor, which indicated there was a higher percentage of persons not returning for trial in government-run pretrial release programs, than in private surety situations. A copy of the publication is attached hereto as Exhibit C. Senator James quoted from the article, which stated, "Nearly 18 percent of those released through pretrial release programs were rearrested while awaiting trial." He said studies showed "private sureties have the best court appearance rate of all forms of pretrial release." Senator James asked if the bill were passed in light of those statistics, people may be released "...when there was less chance they would return for trial." Senator Adler answered the key to whether or not they would return for trial would be the analysis done by the pre-release officer. Senator Porter asked if the purpose of the bill was not to make it easier to post bail, but to make it more equitable for persons who did not have adequate funds and security. Senator Porter then asked Senator Adler if he knew how the courts felt about the legislation. Senator Adler indicated a prerelease officer would provide a better report to the court than the court now receives from a bail bondsman. He added, however, some judges have indicated they do not approve of a government bail system, but reiterated the provisions of the bill were not mandatory. Senator Porter then brought up the subject of an additional penalty if a crime was committed by a person on a prerelease program. Senator Adler said that was not in the bill, but indicated the committee may wish to consider such a provision. Senator Washington brought up the matter of a cosigner for a person who could not post a bail. Senator Adler indicated that was often done, and it would be the responsibility of the cosigner to see the accused appeared for trial. Senator James referred to the Uniform Bail Act, which includes language which says, "If a person shows that due to financial conditions, he or she is unable to obtain a secured release...," and asked if that language was narrower or broader than the language in S.B. 37. He said this bill's language was, "...after sufficient effort...," rather than "due to financial conditions." Senator Adler answered he believed the language was broader. The Honorable Robey Willis, Legislative Chairman, Nevada Judges Association, (NJA) appeared before the committee. He indicated the association was comprised of the "lower court" judges, i.e., those presiding in the justice and municipal courts. Judge Willis stated he agreed the prerelease program "...probably is a good idea in a lot of jurisdictions." He added, however, "As far as the courts becoming a bondsman...collecting fees...that is one more unfunded mandate you are passing down to the court." Judge Willis said the association also was concerned with "truth in bail," and the matter of law enforcement having to find those persons who do not appear in court. He indicated a bail bondsman has a "stake in something they have lost." Judge Willis added they do not have someone at the court "...to go out and look for abscounders." He reiterated agreement with Senator Adler that the "prerelease" portion of the bill was satisfactory. Judge Willis referred to Senate Bill (S.B.) 38, regarding recommended bail schedules, and said: "Once again, it appears to us that once the Legislature starts setting bails for different crimes...that is micromanaging." He indicated the mores of a county such as Lincoln County are different that those of Clark County, and certain offenses would be treated differently. Judge Willis stated he would be willing to bring the matter up to the seminar to be held by the NJA in Las Vegas in February, and suggest that they try to establish a "recommended" bail schedule. He said he disagreed with "setting something in concrete." Senator James referred to S.B. 37 and asked Judge Willis his opinion on the provision regarding administrative assessment for funding the program. Judge Willis indicated it would help defray the cost, but there was concern over the number of assessments added each legislative session. Senator Porter provided the chairman with an article entitled "Equal Justice Under Law" contained in a publication from ALEC, which is attached hereto as Exhibit D. He quoted from the article: "The fugitive rate for private bail agents was less than one percent, much lower than the 20 to 30 percent demonstrated by publicly funded bail programs." He added the article stated, "Pretrial release programs should be discontinued because they increase crime and are a burden to taxpayers." Senator Adler stated a prerelease officer would have the ability to reduce bail if the defendant "had ties to the community," but did not have the money and security for bail bondsman requirements. He reiterated a prerelease officer would act within guidelines set by a magistrate. The senator pointed out if the person arrested had a criminal record, a prerelease officer would do a thorough background check prior to the defendant appearing before the magistrate, so the magistrate would have "a better idea of who he is dealing with." Senator Washington stated, "If a person doesn't have the funds to post bail and a cosigner is available, what better person to judge [the defendant's] character, than the person who has to cosign." He said if the cosigner is reluctant, "...it would say something about [the defendant's] background." Senator Washington stated he believed relatives and close friends are better judges of character than a prerelease officer. Senator Adler responded the prerelease officer would be looking for two, among other things: (1) whether the person can be released because he has definite ties to the community; (2) spotting people who may not seem particulary dangerous, but after digging into the background, it is found they should not be given a reduced bail. Senator James referred to Nevada Revised Statutes (NRS) 178.498, which governs bail amounts, and which sets forth that the court may consider financial ability to post bail. Next to testify on S.B. 37 was James J. Jackson, Nevada State Public Defender. Mr. Jackson addressed some of the concerns expressed by Senator Washington. He said a bail bondsman has discretion as to who recevies a surety bond and can accept or reject any collateral or property someone may offer. He said the first question is, "Does the person have anything to offer?", and secondly, "Is it something the bondsman is desirous of holding as security?" Mr. Jackson said the benefit of a prerelease officer program would be to persons who are penniless, but are otherwise stable members of the community. He added he could understand Judge Willis' concern that passage of the bill may cause a burden on the courts, but reminded the committee that the measure was voluntary. Senator James stated passage of this legislation would help to reduce the jail population, and added the jails are overcrowded. Mr. Jackson replied that the chairman was correct, although there would be greater risk of a defendant not returning for trial under the prerelease program. He then referred to a question posed earlier by Senator Porter concerning additional penalties if a defendant who was released did not return for trial. Mr. Jackson stated an additional penalty would be added for failure to appear, i.e., if a defendant failed to appear under a felony charge, an additional felony charge would be added. Senator James, referring to the article set forth in Exhibit C, stated, "The flip side of the [overcrowded] jail issue, is that 50 percent of those released through pretrial release are arrested while awaiting trial...two-thirds are rereleased...continuing the cycle of crime and violence." He made clear that the statistics set forth are nationwide statistics. Senator Porter said he wanted to make sure by passage of this legislation, "...we are not making it easier for someone to skip bail...but we are trying to help those who cannot afford bail." Senator Adler answered that was the focus of the interim study committee. The next to testify on S.B. 37 were Laurel Stadler, Legislative Liaiason, and Judy Jacoboni, President, Mothers Against Drunk Driving (MADD). Ms. Stadler stated their organization saw the bill as "not a tough-on-crime bill." She added, "It seems to be just another fast-track effort to reduce the jail population...not the pursuit of justice...." Ms. Stadler said they felt the prerelease officer, "...no matter how dedicated...they are there to get the jail population down...." She said the 30 percent increase in failure to appear which is shown in the statistics, "...seems outrageous." Ms. Stadler said the offenders "know the laws" and will deduce that "this is another way to get out of an offense in Nevada." She said there had been a contradiction in terms set forth in earlier testimony, such as "the offender is a stable person, even though he is penniless, has no ties to the community and has no friends to bail him out." Ms. Stadler said she believed that made it obvious the offender would not be a good candidate for bail. She said the organization would agree with the comments of Senator Washington, who said if a person is the type who will show up for trial, "...he probably will have a family member or friend who will put their money where their mouth is." Ms. Stadler added MADD would support leaving the statute in its present form. Senator James asked Ms. Stadler if they not only opposed the program for pretrial release for those who could not qualify for a surety bond, but also the appointment of an officer to assist the court in reviewing the pretrial release option. The Chairman said he believed the appointment of a prerelease officer, "...would enhance the bail system...because the court would appoint someone whose sole job would be to delve into this person...." He said the other part of the legislation was a separate issue, that is the matter of paying 10 percent of the bail amount to the court, rather than having to go through a bail bondsman. Ms. Stadler said she did not see the need for a prerelease officer, "...if all they are going to do is reduce the bail so low the people can afford it, when they really shouldn't." Ms. Jacoboni said MADD feels the counties already have the ability to appoint a prerelease officer, and they would prefer that the large counties do this now, and "come back to the legislature with a track record...then we can more intelligently decide if that is what we want for the state." Ms. Jacoboni urged a "no" vote on S.B. 37. Senator Washington indicated most bail bondsmen require at least 10 percent to be paid before they would post the bail, which in effect means the defendant would have to pay at least that amount in any event. Senator Adler stated the interim committee was mainly concerned with the prerelease officer portion of the bill. He added a funding mechanism would be necessary to make the program work, and this legislation provides for the same. The senator said he believed "this would do as much to protect the public as it would do to reduce jail population." He said having the prerelase officer determine what bail should be "makes perfect sense." Senator Adler said in the instance of a person who has ties to the community and no criminal record, a prerelease officer could have the bail reduced. He added, "We have a constitutional obligation to guarantee every person a reasonable bail." Senator Adler said part of that obligation was to make a detailed analysis of the type of person the court is dealing with. Senator Washington said if the purpose was to protect the citizens of the community, "...it would be more important to get that individual to trial to prove his innocence." He said if the person could post bail, he or she should do that; if he or she does not, it would be better to have them stay in jail. Senator Washington said the prison population is going to increase naturally, because of the increase in population, and the important thing was to protect society. Senator Adler responded that with that argument, the assumption is that a person with money is a more responsible person than one who does not have the money to post bail. He said the purpose of the legislation is to say, "each individual needs to be analyzed on their background...." Senator Washington replied he did not believe "adding one more step" in the pretrial process "would enhance or alleviate the problem." He said he believed it would just make it easier for the individual to be released. Senator James stated S.B. 37 has three parts: the establishment of a prerelease officer, who would evaluate the criteria and conditions to bail which are already in Nevada law; including four conditions which must be considered before releasing a person without bail; and the provision regarding a court-run pretrial release program, if a person does not qualify for a bond from a bail bondsman. Senator James indicated the third part of the bill was the least desirable. Judy Jacoboni asked the committee to be cautious about passing the bill with the removal of the third provision, since there would still be pressure on an officer to release a prisoner, because of the jail overcrowding. Senator Adler stated there may be a misconception concerning what S.B. 37 does. He said the prerelease officer cannot simply set a bail at any amount he or she wishes, but can only set bail within the parameters set by the magistrate. Senator James referred to section 2(a) of S.B. 37, which states, "The magistrate may: ...authorize the officer...to release the person with or without bail, according to his findings pursuant to subsection 2;" and went on to point out that subsection 2 states the officer "shall, unless it is impracticable...." The chairman indicated he believed that to be "very objectionable language." Senator James continued, "If that person [the prerelease officer] deemed it was impracticable, in his own unfettered judgment, they could not even consider...the statute." Senator Adler replied he believed that was a error in drafting. He said it was intended that the court delegate certain authority for certain crimes and set out the bail the prerelease officer could impose. Senator Washington asked if it would not be better to allow the counties to implement the system. Senator Adler responded that was the intent of the legislation. Senator Washington asked if it was necessary for the Legislature to pass a bill "to allow the counties to do their job." Senator Adler stated he did not believe the judges could impose such a system under the current statutes. The last person to testify on S.B. 37 was Eric Cooper, representing Nevada Sheriffs and Chiefs Association. Mr. Cooper stated, "Bail is not meant to be punitive...it is meant to force the appearance of the individual...." He added law enforcement does not want to retain persons in jail any longer than need be. Mr. Cooper stated the pretrial release program has been in effect in Clark County for many years. He said they now do what is discussed in the legislation before the panel. He suggested the committee review how the program works while they are in Las Vegas during the legislative adjournment in February, 1995. Senator James said Mr. Cooper's statement reinforces Senator Washington's statement regarding the necessity for such legislation. Senator Adler responded there were certain actions which could not be taken without passage of this bill, such as bail schedules. Mr. Cooper said Clark County has the funding mechanism necessary to implement such a program, where smaller counties do not without an administrative assessment, such as provided in S.B. 37. Senator Porter asked Senator Adler what prompted the concept of a prerelease officer. Senator Adler said testimony during the interim study indicated in many counties persons were "spending an inordinate time in jail...not being able to post bail," while in other counties persons were released who were not being properly interviewed prior to that release. He added this led to some unfair treatment because of the lack of a uniform system. Senator Washington asked if such testimony came from the minority community. Senator Adler answered there was testimony from a cross section of communities. Senator McGinness asked Mr. Cooper if Clark County felt it already had the authority to use a prerelease program. Mr. Cooper answered the Nevada statutes give a sheriff the authority to release a person "on his own recognizance." He reiterated Clark County is using a prerelease program at this time. Senator James stated the important portion of the legislation was the implemenation of a funding mechanism. Mr. Cooper assented, stating some counties could not afford to add another employee who would act as prerelease officer. Senator Adler asked Mr. Cooper if Clark County also employed a "classification officer" who would interview persons prior to being sent to a prerelease officer. Mr. Cooper said he believed the classification officer was simply there to classify a prisoner as to where he or she would be housed, after he or she has been booked. Senator James thanked Senator Adler for his presentation of S.B. 37. He said he would allow Senator Adler time to review the issues which were presented and return an amended version of the bill to the committee. The chairman added he believed section 5 of the bill was "questionable." Senator James asked Senator Adler to briefly explain S.B. 38. Senator Adler answered the idea was to "establish a uniform bail schedule for the state." He said it was the hope of the interim committee that the Nevada Supreme Court "would come up with a coordinated bail schedule for all counties." He said they found during the study that even Washoe County does not have a uniform bail schedule within the county. He said a highway patrolman serving a large territory may have "three or four different bail schedules" to utilize when booking a prisoner. Senator Adler referred to Judge Willis' statement that "there are different community standards." He said he had a different opinion and believed "there should be a uniform criminal justice system throughout the state." Senator Adler also mentioned Judge Willis' suggestion that the NJA design a uniform bail schedule, and indicated perhaps a bill could be introduced which would delegate that authority to the NJA. He said that would make the justice system more efficient throughout the state. Senator James asked if that would be interfering with the judicial branch of government. Senator Adler also suggested the committee write to the Nevada Supreme Court and ask if they would work with the NJA to "put together a uniform bail schedule. Senator James agreed. Senator Titus added, "The Supreme Court never hesitates to come over here and tell us when we are intruding in their territory...it seems if they were interested...or thought we shouldn't do this...they would be here doing it." Senator Adler reiterated he believed the best course was to write to the justices and ask if they would work with the judges, "so we don't have to process this bill." Senator James asked Senator Adler if he would prepare such a letter. Senator Titus suggested S.B. 37 be held by the committee so it could be acted upon if the Nevada Supreme Court did not respond. There was no further testimony on S.B. 37 or S.B. 38, and no further business before the committee. Senator James closed the hearing at 10:00 a.m. RESPECTFULLY SUBMITTED: ____________________________ Marilyn Hofmann, Committee Secretary APPROVED BY: ________________________________ Senator Mark A. James, Chairman DATE: __________________________ Mn1-18JD.mjh Senate Committee on Judiciary January 18, 1995 Page